Citation Nr: 0319444
Decision Date: 08/07/03 Archive Date: 08/13/03
DOCKET NO. 98-20 754 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased rating for herniated nucleus
pulposus L5-S1 status post discectomy, currently evaluated as
40 percent disabling.
2. Entitlement to a total disability rating due to
individual unemployability (TDIU), due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kelli A. Kordich, Counsel
INTRODUCTION
The veteran served on active duty from December 1972 to
January 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Atlanta, Georgia (RO) which denied the benefits sought on
appeal.
FINDINGS OF FACT
1. The veteran's herniated nucleus pulposus L5-S1, status
post discectomy is manifested by pronounced intervertebral
disc syndrome.
2. Service connection has been established for: herniated
nucleus pulposus L5-S1, status post discectomy, evaluated as
40 percent disabling; and hypertension, evaluated as 10
percent disabling.
3. The veteran has 2 years of college and worked as a food
service manager for correctional institutions from June 1995
to June 1997.
4. The veteran's service-connected disabilities are of such
severity as to preclude all forms of substantially gainful
employment.
CONCLUSIONS OF LAW
1. The criteria for an evaluation of 60 percent, but no
higher, for the service connected herniated nucleus pulposus
L5-S1, status post discectomy have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1); Part 4,
including §§ 4.1, 4.2, 4.7, 4.10, 4.45, 4.59, Diagnostic Code
5293 (prior to and effective from September 23, 2002).
2. The criteria for a total rating based on individual
unemployability due to service-connected disabilities been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.321, 3.340, 3.341, 4.16, 4.18 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Introduction
There has been a significant change in the law during the
pendency of this appeal.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This change in the law is applicable to all
claims filed on or after the date of enactment of the VCAA or
filed before the date of enactment and not yet final as of
that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126, (West Supp. 2002); see Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991); cf. Dyment v. Principi, 287
F.3d 1377 (Fed. Cir. 2002) (holding that only section 4 of
the VCAA, amending 38 U.S.C. § 5107, was intended to have
retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a) (2002)). These regulations, likewise, apply to
any claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by VA as of that date, with the exception of the
amendments to 38 C.F.R. § 3.156(a) pertaining to VA
assistance in the case of claims to reopen previously denied
final claims (the second sentence of § 3.159(c) and
§ 3.159(c)(4)(iii)), which apply to any claim to reopen a
finally decided claim received on or after August 29, 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
With regard to the development that has been undertaken in
this case, the record includes treatment records from PRIMUS
dated September 1993; private medical records from The
Hughston Clinic, P.C., dated March 1996 to April 1997, April
and June 1998; VA outpatient treatment records dated July
1997 to May 1998; December 1998 examination conducted by
M.S.G., M.D.; May 1999 VA CT scan; June 1999 VA progress
notes; VA examinations dated in April 2000; November 2000 VA
progress note; Social Security Administration award dated
October 2001.
Additionally, the record shows that the veteran has been
notified of the applicable laws and regulations, which set
forth the criteria for entitlement to the benefit at issue.
The discussions in the rating decision, statement of the
case, and supplemental statement of the case have informed
the veteran of the information and evidence necessary to
warrant entitlement to the benefit sought. In a December
2002 supplemental statement of the case, the RO informed the
veteran of the change in the law regarding intervertebral
disc sydnorme. In addition, the case was remanded in January
2000 for the RO to render a decision on evidence received in
June 1999 and to issue a supplemental statement of the case
on the issues on appeal.
The veteran was sent a VCAA letter in December 2002. In
accordance with the requirements of the VCAA, the letter
informed the appellant what evidence and information VA would
be obtaining. The letter explained that VA would make
reasonable efforts to help him get evidence such as medical
records, employment records, etc., but that he was
responsible for providing sufficient information to VA to
identify the custodian of any records.
Thus, through items of correspondence the RO has informed the
appellant of the information and evidence necessary to
substantiate his claim. Therefore, further development is
not needed to meet the requirements of the VCAA. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Increased rating for herniated nucleus pulposus L5-S1
Background
Treatment records from PRIMUS dated September 1993 show that
the veteran was seen for chronic low back pain. He was in no
acute distress and his gait was within normal limits.
Private medical records from The Hughston Clinic, P.C., dated
March 1996 to April 1997 show that in March 1996, the veteran
was started on physical therapy for paraspinous muscles and
abdominal strengthening exercises. It was noted that the
veteran's employer indicated that there would be no
restrictions in terms of him getting back to work. It was
noted by the examiner that the veteran was unable to do his
present job, at the time, and wanted to see the veteran back
to work in one week. In April 1996, it was noted that the
veteran had evidence of foraminal stenosis at L5-S1. He
continued to have low back pain with radicular symptoms and
was not much better. X-rays in June 1996 showed evidence of
degenerative disc disease at L5-S1. A September 1996 MRI
showed there was a L5-S1 disc space narrowing, desiccation
and anterior and posterior osteophytic spurring. The
remainder of the disc spaces and heights were well preserved.
The distal portion of the conus medullaris was identified at
the T12, L1 level and was unremarkable. There were no
abnormal bone marrow morophology and the aorta had a normal
caliber. There was no disc bulge, herniation or free disc
fragments at L3-L4. There was a mild diffuse disc bulge
without any significant central or foraminal stenosis at L4-
L5. There was a left L5-S1 laminotomy defect. There was
disc material beyond the end plates and had a left
parasagittal predominance. There was also soft tissue
density obscuring the left S1 nerve root on pre-Gadolinium
imaging at the level of the lateral recess that on post
Gadolinium imaging was consistent with scar formation. A
combination of disc material beyond the end plates and left
facet hypertrophy was narrowing the left exiting canal. The
aforementioned findings were also contributed by left
posterior osteophytic ridging. In November 1996, it was
noted that the veteran had epidural steroid injections
without any therapeutic benefit. It was noted that the
examiner spoke to the veteran about a TENS unit. In January
1997, the veteran reported having good days and bad days. He
indicated that he was getting prescriptions for Percocet from
the VA Hospital in Tuskegee. In April 1997, the veteran
reported that his symptoms were essentially the same and he
did get considerable relief from Soma and continued to do
exercises. It was noted that there was nothing more that
could be done and he was asked to return in 3 months for
follow-up.
The veteran was again seen at The Hughston Clinic in April
and June 1998. In April the physical examination showed the
veteran with some mild paraspinous muscle tightness to
palpation. There was mild tenderness to palpation over the
SI joints bilaterally, slightly more pronounced on the right
than the left. Straight-leg raising was negative
bilaterally. Strength in the lower extremities was 5/5. The
assessment was chronic low back pain. It was noted that the
veteran was given an intramuscular injection of Celestone to
reduce the inflammatory cascade, which was causing the
veteran's discomfort. In June 1998, the veteran reported low
back pain with bilateral leg pain. He also complained of
having some bilateral hip pain, more pronounced on the left
than the right. It was noted that the veteran was seen at
Martin Army Hospital where x-rays showed evidence of
degenerative arthritis involving his left hip. The
examination showed limited range of motion of the left hip.
Hip flexion was to 110 degrees. Internal rotation was to 25
degrees. External rotation was to 30 degrees. Hip abduction
was to 30 degrees. Adduction was to 30 degrees. The veteran
had moderate diffuse tenderness to palpation over the lower
lumbosacral spine. Lateral bending to the right was to 20
degrees, to the left was to 20 degrees. The assessment was
chronic low back pain and degenerative joint disease, left
hip.
VA outpatient treatment records dated July 1997 to May 1998
show that the veteran was seen for his back pain.
At a December 1998 examination conducted by M.S.G., M.D., the
veteran reported mechanical lumbosacral pain that could
radiate down his left lower extremity to involve cramping in
his calf. The veteran described the worst pain in his back
and rated it as a 10 on a scale of 10. The veteran indicated
that the pain was there most of the time with walking,
sitting, driving, and standing for prolonged periods were
especially provocative for him. It was noted that there was
Valsalva effect. Palliative for him was a lumbar corset and
lying down.
The examination showed peripheral pulses were 0/0 as were
specific muscle testing in the lowers. Sensation was 0/0
through out. Reflexes were 0/0 in the upper and lowers and
there were no pathological reflexes. Tone was normal with
and there was no clonus. Gait was slightly antalgic;
however, the veteran was able to walk on his heels and his
toes and climb stairs. Romberg's sign was negative. There
was no drift, no tremor, and no truncal or appendicular
ataxia. The veteran had a well-healed lumbosacral wound
without evidence of infection or pseudomeningocele. Range of
motion was noted as impaired and there were no mechanical
root irritation signs. The examiner indicated that the
veteran had exhausted non-surgical treatment alternatives.
It was noted that the veteran would be a candidate for
interbody fusion L5-S1. The veteran wished not to pursue
surgical treatment.
A May 1999 VA CT scan showed posterior central disc
herniation at L4-5 and L5-S1. Degenerative desiccated disc
with focal spondylosis and anterior marginal spurs, neural
foraminal encroachment, L5-S1.
A June 1999 VA progress noted indicated that the veteran had
back surgery in 1990 and that a recent CT scan of the
lumbosacral spine showed herniated nucleus pulposus at L4-L5,
L5-S1. The veteran reported that pain was continuous.
The examination showed that the veteran walked with a cane
and had a healed surgical scar on the low back. The lower
paraspinals were in spasm and he could not walk on his heels.
The veteran was able to go up and down on his tiptoes.
Forward flexion was to 30 degrees, extension to 15 degrees,
bilateral and lateral flexion was to 15 degrees. Bilateral
lateral rotation was to 15 degrees.
At his April 2000 VA spine examination, the veteran reported
chronic low back pain with constant pain. He indicated that
prolonged walking, standing, sitting aggravated the pain.
Medications decreased the pain to some extent. He walked
with a cane and lumbosacral corset.
The examination showed flexion of the lumbosacral spine to 20
degrees, extension to 25 degrees, bilateral lateral flexion
to 25 degrees, and bilateral lateral rotation to 30 degrees.
He expressed pain at 20 degrees of flexion, 25 degrees of
extension, and 25 degrees of bilateral lateral flexion and
bilateral lateral rotation. There was mild tenderness over
bilateral lower paraspinals and lower paraspinals were in
spasm. Bilateral ankle reflexes were brisk.
At the veteran's April 2000 VA peripheral nerves examination,
the veteran reported chronic low back pain and prolonged
sitting and standing aggravated the pain. Motrin decreased
the pain. He indicated he had pain in the left leg with no
paresthesias or numbness.
The examination showed left knee flexion to 135 degrees with
extension to 0 degrees. It was noted that the veteran walked
with a cane and had a lumbosacral corset in place. Left hip
flexion was to 120 degrees, abduction was to 30 degrees, and
extension was to 15 degrees. The examiner noted that the
veteran did not express any pain during range of motion of
the spine.
At his April 2000 VA brain and spinal cord examination the
veteran reported low back pain radiating to the left leg
during the night. Prolonged sitting aggravated his pain. It
was noted that the veteran was on Flexeril and Motrin.
Prolonged sitting, walking, and bending were painful.
The examination showed pain in the left leg with no numbness
or weakness. He walked with a cane and had a lumbosacral
corset in place. He had a TENS unit at home that he used.
Range of motion is noted above.
A November 2000 VA progress note indicated severe spasm of
left paraspinal muscles and moderate spasm of right
paraspinal muscles. It was noted that the veteran was
wearing a back brace. Forward flexion was +90 degrees with
pain. The assessment was Paget's disease of the left tibia;
hypertension; degenerative disc disease of the lumbar spine;
spondylosis of the lumbar spine; lumbago; lumbar strain;
posterior central disc herniation of L4-5 and L5-S1; mild
arthritis of the left hip; and mild arthritis of the right
glenohumeral joint.
Social Security Administration records dated October 2001,
indicate that the veteran was granted disability benefits due
to: status post laminectomy; degenerative disc disease; low
back pain; spondylosis of lumbar spine; Paget's disease of
the left tibia; arthritis, and hypertension.
Criteria
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
In the present case, it should also be noted that when
evaluating disabilities of the musculoskeletal system, 38
C.F.R. § 4.40 allows for consideration of functional loss due
to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. DeLuca v.
Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45
provides that consideration also be given to weakened
movement, excess fatigability and incoordination.
During the pendency of this appeal, the criteria for
evaluating intervertebral disc syndrome were changed. When a
law or regulation changes while a case is pending, the
version most favorable to the veteran applies, absent
congressional intent to the contrary. Karnas, 1 Vet. App. at
312-313. The effective date rule established by 38 U.S.C.A.
§ 5110(g), however, prohibits the application of any
liberalizing rule to a claim prior to the effective date of
such law or regulation. Thus, as the criteria for evaluating
intervertebral disc syndrome was revised effective September
23, 2002, any increase in disability based on the revised
criteria cannot become effective prior to that date.
The veteran's lumbosacral strain with herniated disc is
currently rated as 40 percent disabling under the provisions
of Diagnostic Code 5293, intervertebral disc syndrome.
Under the former criteria of Diagnostic Code 5293, pertaining
to intervertebral syndrome, a rating of 60 percent, the
highest rating for intervertebral disc syndrome, requires a
pronounced intervertebral disc disorder, with persistent
symptoms compatible with sciatic neuropathy, with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
The revised criteria under Diagnostic Code 5293 evaluates
intervertebral disc syndrome (preoperatively or
postoperatively) either on the total duration of
incapacitating episodes over the past 12 months or by
combining under Sec. 4.25 separate evaluations of its chronic
orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. Intervertebral disc
syndrome with incapacitating episodes having a total duration
of at least six weeks during the past 12 months warrants a 60
percent evaluation. Note (1) indicates that for purposes of
evaluations under 5293, an incapacitating episode is a period
of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician. "Chronic orthopedic and
neurologic manifestations" means orthopedic and neurologic
signs and symptoms resulting from intervertebral disc
syndrome that are present constantly, or nearly so.
Analysis
Based on the evidence of record, a 60 percent disability
evaluation under the old criteria (Diagnostic Code 5293) more
appropriately reflects the functional impairment experienced
by the veteran. A May 1999 VA CT scan showed posterior
central disc herniation at L4-5 and L5-S1. Degenerative
desiccated disc with focal spondylosis and anterior marginal
spurs, neural foraminal encroachment, L5-S1. The April 2000
VA examination showed flexion to 20 degrees, extension to 25,
degrees, bilateral lateral flexion to 25 degrees, and
bilateral lateral rotation to 30 degrees. He expressed pain
at 20 degrees of flexion, 25 degrees, of extension, and 25
degrees of bilateral lateral flexion and bilateral lateral
rotation. There was mild tenderness over the bilateral lower
paraspinals and lower paraspinals were in spasm. A November
2000 VA progress note indicated severe spasm of the left
paraspinal muscles and moderate spasm of the right paraspinal
muscles. It was noted that the veteran was wearing a back
brace. Forward flexion was +90 with pain. The veteran had
consistently reported chronic low back pain, which was
aggravated by prolonged walking, standing, and sitting. The
veteran used a cane and wore a back brace. The veteran was
awarded Social Security disability benefits in October 2001
for his disabilities, which also included the non-service
connected Paget's disease of the left tibia.
The medical evidence has not demonstrated that the veteran's
service-connected back disability encompasses ankylosis of
the lumbar spine or fracture of a vertebral body;
accordingly, assignment of an increased evaluation under
Diagnostic Codes 5286 and 5285 is not warranted.
III. TDIU
Background
The veteran contends that he is unable to sustain gainful
employment as a result of his service-connected disabilities,
in particular his back disability. The record reflects that
the veteran served as a food service specialist until his
retirement. The veteran completed two years of college and
worked as a food service manager for correctional
institutions from June 1995 to June 1997.
The veteran indicated in a letter to his employer in April
1996 that he had reinjured his back at work in February 1996
and had been under a doctor's care. He indicated that his
condition was improving but his leave without pay was ending
in April and he needed to extend his leave. The leave was
granted until March 1997, but the veteran's situation was the
same. The veteran asked for another extension but was
terminated because he was late in submitting his request.
Private medical records from The Hughston Clinic, P.C., dated
March 1996 to April 1997 showed that the veteran was unable
to do his present job at the time. In April 1996, it was
noted that the veteran had evidence of forminal stenosis at
L5-S1. He continued to have low back pain with radicular
symptoms and was not much better. X-rays in June 1996 showed
evidence of degenerative disc disease at L5-S1. A July 1997
letter to the veteran's employer from The Hughston Clinic
indicated that the veteran had an appointment in August and
should remain out of work until that time, when he could be
evaluated further. It was noted that a Functional Capacity
Exam was needed as well as a disability rating. The
physician noted that at that time, they would have a better
idea of what the veteran would be able to do and the
employment situation could be discussed.
At a December 1998 examination by M.S.G., M.D., the examiner
noted that the veteran had exhausted non-surgical treatment
alternatives and would be considered a candidate for anterior
interbody fusion L5-S1, but he did not wish to pursue
surgery.
The veteran was awarded Social Security disability benefits
in October 2001; however, one of the disabilities, Paget's
disease is not a service-connected disability.
Criteria
In order to establish service connection for a total
disability rating, there must be an impairment so severe that
it is impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340. In
reaching such a determination, the central inquiry is
"whether the veteran's service-connected disabilities alone
are of sufficient severity to produce unemployability."
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation; provided that permanent
total disability shall be taken to exist when the impairment
is reasonably certain to continue throughout the life of the
disabled person. 38 C.F.R. § 4.15.
The law provides that a total disability rating may be
assigned where the schedular rating is less than total, when
the disabled person is unable to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities, provided that, if there is only one
such disability, this disability shall be ratable at 60
percent or more, or if there are two or more disabilities,
there shall be at least one ratable at 40 percent or more,
and sufficient additional disability to bring the combined
rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341,
4.16(a). Marginal employment shall not be considered
substantially gainful employment. 38 C.F.R. § 4.16(a).
In this case, the veteran's rating for his back has now been
increased to 60 percent disabling and his only other service
connected disability, hypertension, is rated as 10 percent
disabling, and his total combined disability rating is 64
percent. The veteran thus fails to satisfy the minimum
percentage requirements for TDIU under 38 C.F.R. § 4.16(a).
That notwithstanding, total disability ratings for
compensation may nevertheless be assigned where the schedular
rating for the service-connected disability is less than 100
percent when it is found that the service-connected
disability is sufficient to produce unemployability without
regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16.
Thus, the issue is whether the veteran's service connected
disabilities preclude him from engaging in substantially
gainful employment (i.e., work which is more than marginal,
that permits the individual to earn a "living wage"). Moore
v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to
prevail on a claim for a total compensation rating based on
individual unemployability, the record must reflect some
factor, which takes this case outside the norm. The sole
fact that a claimant is unemployed or has difficulty
obtaining employment is not enough. A high rating in itself
is recognition that the impairment makes it difficult to
obtain or keep employment, but the ultimate question is
whether the veteran is capable of performing the physical and
mental acts required by employment, not whether he can find
employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In determining whether unemployability exists, consideration
may be given to the veteran's level of education, special
training and previous work experience, but not to his age or
to any impairment caused by nonservice-connected
disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case,
the veteran's occupational background and educational
attainment are satisfactory for employment purposes. The
veteran reported completing two years of college and he last
worked in 1996.
Analysis
After a review of the evidence, it is concluded that the
veteran is unable to obtain or maintain a substantially
gainful occupation as a consequence of his service-connected
disorders, and that TDIU benefits should be assigned.
In particular, it is noted that the veteran was unable to go
back to his job due to his ongoing back problems documented
in a July 1997 letter by The Hughston Clinic. The record
does not show that the veteran's condition has improved since
his termination from employment. In resolving reasonable
doubt in the veteran's favor on this issue, it is found that
the evidence supports the veteran's claim for a total
disability rating based on individual unemployability due to
his service connected disabilities.
ORDER
An increased evaluation to 60 percent, and no higher, for
herniated nucleus pulposus L5-S1, status post discectomy is
granted.
A total disability rating based on individual unemployability
due to service-connected disabilities is granted.
____________________________________________
G. H. SHUFELT
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.